미국, 일본, 중국의 법률전 수행방식의 특징과 평가

Abstract

In general, States have carried out so-called ‘lawfare’ by interpreting and applying international law favorably to their own interests, to publicizing the justification of their official position to other States, and enacting and enforcing domestic laws and regulations being able to justify their national policies. This article analyzes and evaluates comparatively major characteristics of methods carrying out lawfare adopted by the United States (“US”), Japan, and People’s Republic of China (“PRC”), finds out main implications for successful solution to international disputes involved with the Republic of Korea (“South Korea”), and makes some policy proposals for effective methods utilizing international law. To analyze and evaluate comparatively diverse measures and publicizing methods taken by US, Japan, and PRC is indispensable to search for appropriate methods to cope effectively with international disputes involved with South Korea. For example, regarding fulsome attacks by the use of international lawfare of Japan in international disputes such as Dok rocks, sex slave and enforced labor issues during Japanese colonial period, it is necessary for South Korea to counteract systematically and disclose consistently its hypothetical contention lacking of legitimacy and legality under international law, together with NGOs and intellectuals.State practices of the United States, Japan, and PRC utilizing actively international law as a tool to maximize national interests reflect their political will to utilize international law, based on each ‘national State first’, with a view to accomplishing their own national interests. State practices of three countries to interpret and apply arbitrary international law so as to conform to national interests will deteriorate existing international disputes and keep on causing new international disputes. As to international disputes with super powers such as US and PRC, it is more desirable for South Korea to utilize more actively judicial or rule-oriented dispute settlement mechanisms that exclude the use of political and economic power and ensure procedural equality because South Korea lacks of negotiation power. In case that there lacks of relevant international rules and their application makes South Korea unfavorable, it is more desirable for South Korea to utilize properly diplomatic dispute settlement methods that may provide mutually satisfactory solution, reinforcing also publicity activities to get international support.